Bailey v. . Mitchell , 179 N.C. 99 ( 1919 )

CLARK, C. J., concurring. The motion of the defendant Justice for judgment upon the pleadings is upon the ground that as James Bailey bought the interest of his two sisters after the former judgment in which it was adjudged that James, Aisley, Charlotte, and Justice was each entitled to a one-fourth interest in the land; that he was estopped to deny that he, Justice, was the owner of such one-fourth interest, and for this position he relies on Carter v. White,134 N.C. 466, but this is a misapprehension of that decision.

In Carter v. White it was adjudged in an action of trespass that the defendant was the owner of one-fifty-fourths of a tract of land, and the plaintiffs the owners of fifty-three-fifty-fourths thereof, and it was held in a subsequent proceeding for partition that this judgment estopped the defendant, from setting up an after-acquired outstanding title, which, if allowed, would have defeated the effect of the former judgment, while in this action James Bailey has simply bought the shares of his two sisters as they were adjudged to be in the former action, and his purchase in no way affects the defendant Justice.

Again, the heirs of Jones Bailey were not parties to the former action, and cannot be bound by the judgment rendered therein, and the effect of the present judgment is to superimpose their interest on the shares of James Bailey and Justice alike. In other words, the former judgment was rendered upon the fact as it then appeared, that there were only four heirs entitled to share in the estate, and in this judgment this error of the parties is corrected by giving the representatives of the fifth heir their share.

The instruction which his Honor refused to give was properly denied, as it was equivalent to a peremptory instruction to the effect that the defendant Justice was the owner of lot D under the deed secured in the proceeding to foreclose the tax lien, when it was a controverted question as to whether the deed covered lot D, and it seems to have been adjudicated in the former action that it did not do so.

Judge Walker says in the former opinion, 174 N.C. 754: "He recovered the one-fourth interest claimed by him, as the verdict and judgment will show, but the presiding judge was of the opinion, and so held, that he had not offered evidence sufficient to locate the land bought by him at the tax foreclosure sale."

It is also found by the jury that James Bailey was not served with summons in the foreclosure proceeding and the heirs of Jones Bailey were not parties thereto.

These are the only exceptions discussed in the brief of counsel, and upon the whole record we find

No error.